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Inclusion of dual nationals in new criminal records database "incompatible" with the right to non-discrimination
28.1.19
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A new EU database approved by the European Parliament's civil liberties committee last week will breach the right to non-discrimination, according to a committee of international legal experts.

On Wednesday 23 January the European Parliament's civil liberties committee (LIBE) approved the establishment of the the European Criminal Records Information System for Third-Country Nationals (ECRIS-TCN), which will involve the creation of a centralised EU database containing the biographic and biometric data of non-EU citizens who have been convicted in the Member States.

However, dual nationals (people with citizenship of both an EU and non-EU state) are also to be included in the system, something that is "incompatible with the prohibition of discrimination expressed in international human rights law," according to the Meijers Committee of experts on international immigration, refugee and criminal law.

In a letter sent to MEPs on the LIBE committee the day before the vote (pdf), the Meijers Committee warned that "the ECRIS-TCN database, if adopted, would fail to respect the fundamental right to non-discrimination" and urged MEPs "not to adopt proposals which would violate primary Union law or international human rights conventions."

The Commission's January 2017 proposal foresaw the inclusion of dual nationals in the database and the Council was also in favour of this approach, while the Parliament's original position was to oppose the inclusion of dual nationals in the database.

However, at some point during secret "trilogue" negotiations on the proposed text of the Regulation, MEPs from the LIBE committee dropped their opposition and the vote on Wednesday morning saw the majority of MEPs vote in favour of the proposal.

Some members remain opposed to the deal struck with the Council. The left-wing GUE/NGL group voted against the text and posted a message on Twitter:

"The @EP_Justice vote on #ECRIS today is a violation of the rights of EU citizens with third-country nationalities - creating unequal classes of EU citizens. This is a clear discrimination against all EU citizens of immigrant origin!"

The issue of discrimination in the ECRIS-TCN was raised in a previous publication by the Meijers Committee, and has also been highlighted by the European Data Protection Supervisor (pdf).

In its letter sent last week, the Meijers Committee highlights a recent legal intervention by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to legal proceedings in the Netherlands, in a case concerning the country's policy of stripping dual nationals of citizenship when they are convicted of terrorism-related crimes.

The Special Rapporteur's position made clear that:

"The Netherlands' policy to use individuals' status as Dutch mono or dual nationals to determine eligibility for citizenship revocation results in discriminatory tiers of citizenship: full citizenship for Dutch mono nationals and less-secure citizenship for Dutch dual nationals. Because this result contradicts its international human rights law obligations to guarantee equality before the law and equal protection of the law for all its citizens, the Netherlands must not rely on any mono-/dual-nationality distinction in determining permissibiltiy of citizenship revocation."

The submission refers to this as a "regime of discriminatory and unequal citizenship rights for dual citizens."

The text approved by the LIBE committee now has to be approved by a plenary meeting of the Parliament, which is currently scheduled for 11 March 2019.

The Council also has to approve the text. The Justice and Home Affairs Council is due to meet on 7 and 8 March, although there is currently no agenda for that meeting.

Statewatch will shortly be publishing an analysis of the final text which examines discrimination against dual nationals and other issues raised by the ECRIS-TCN database in more detail.

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